Appearances do count

Last winter, at the height of the Clinton impeachment trial, I went to hear a lecture at the Israel Academy of Arts and Sciences, on public officials' right to privacy, by one of my favorite law school professors.

All that remains in my memory from that speech is that one of America's leading legal minds used the phrase "I would maintain," or variants thereof, a hundred times in less than an hour.

How different, I thought, from Talmudic learning: In Talmudic debate one must proof a point, not just assert it, no matter how smart one is.

More clearly remembered is Chief Justice Aharon Barak's introduction of the speaker. Justice Barak described at length a case concerning the right to picket in front of Rabbi Ovadia Yosef's home in a residential neighborhood. The court was forced to balance, he said, the right of picketers to have their message heard by their intended target versus the right of Yosef's neighbors to peace and quiet.

At one point, said Barak, we considered a compromise: Let them picket instead at the Israel Academy of Arts and Sciences, which was not far from Yosef's residence at the time. Then came the punch line: "But we asked ourselves: What possible connection is there between Rabbi Ovadia Yosef and the Israel Academy of Arts and Sciences?"

The audience, most of whom looked naked without sherry glasses in hand, tittered appreciatively at the court president's bon mot.

Barak's precious anecdote had nothing to do either the speech or speaker to follow. His only point was to share a joke at Yosef's expense and point out what an ignorant boob the rabbi is.

I was recently reminded of Barak's remarks when the Supreme Court took up the question of whether Yosef should be prosecuted for insulting the justices of the Supreme Court. However offensive Yosef's jibes about the justices' lack of mitzva observance may have been, it is inconceivable that they should be criminalized in any country that purports to value free speech.

Barak's jest did far more to lower the stature of the Supreme Court than anything Yosef could have said. His words undermined societal trust in the impartiality of the highest levels of the judicial system. And while Barak is not likely to appear as a litigant in Yosef's beit din anytime in the near future, whereas issues of vital concern to Yosef are the subject of Supreme Court suits on an almost daily basis.

Nor was the subtle contempt for religious leaders manifest in Barak's story an isolated incident.

Last year he was present when Beersheba Magistrate's Court President Oded Elyagon publicly likened haredim to "huge lice." At that moment, Barak was in the same position as Hillary Clinton had been, when Suha Arafat accused Israel of poisoning Palestinian children in her presence. And he showed even less recognition of the implications of what he had heard.

He neither repudiated Elyagon's remarks nor reprimanded him. Just the opposite: Speaking after Elyagon, he praised the speech.

Only weeks later, after a storm of protest, did Barak issue the mildest of censures. Remarkably, Elyagon continues to sit on the bench. (Compare the manner in which a 20-year-old junior officer was recently cashiered from the army in a day for impolitic comments about heterodox Jewish movements.)


UNFORTUNATELY, the court often reinforces the impression of many religious Jews that they cannot receive a fair hearing.

During the height of the Rehov Bar-Ilan controversy, Justice Dalia Dorner granted a police request for pre-trial incarceration, without bail, for a 13-year-old charged with throwing stones.

The boy in question denied the charge and had no previous record. At the same time, the police did not even request pre-trial detention of a 17-year-old charged with assaulting yeshiva students, who had a previous conviction for assault with a deadly weapon.

Recently another justice took judicial notice of the "fact" that haredim and non-religious Jews cannot live together, even though the suit arose in Rehovot, where they have done so for a century.

Snobbery at best, and outright bias against certain social groups, at worst, increasingly appear to permeate the legal system. One of Prof. Ruth Gavison's most shocking accusations in her November 12 interview in Ha'aretz was that something other than purely professional considerations govern the resources devoted to particular criminal investigations and the way they are prosecuted.

'What is bothersome,' she observed, 'is the feeling that an element of persecution is present in the system. The system denies this, but the denial is no longer convincing because the accumulation of cases is too great. It arouses suspicion . . . .

'When the impression is formed that the rotten apples have become so much a part of the system that even the heads of the system no longer see them, then the feeling grows that the system is deeply flawed at its roots.'

US Justice Benjamin Cardozo famously pronounced the standard for those entrusted by the public: "not honesty alone, but the punctilio of an honor the most sensitive. . ." He recognized that anything less than the appearance of scrupulous honesty and impartiality destroys the legitimacy of the entire system.

Our legal officers, however, in their high arrogance, could care less about appearance of bias. Just this week, Justice Theodore Or refused to recuse himself from a case in which both counsel for the appellant and a key witness in the lower court proceedings are close friends of his and served with him on the Or Commission on court reorganization. Or declared the Code of Ethics for Judges to be not binding on him.

Those who fail to recognize the need to be above any hint of bias, whether with regard to individual citizens or entire classes of citizens, have lost any right to serve as the arbiters of the basic values of Israeli society.